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BAKE, Article19, LSK & KUJ appeal surveillance provisions of the Cybercrimes Act in the Supreme Court

The Bloggers Association of Kenya (BAKE), in collaboration with the Law Society of Kenya (LSK), Article 19 Eastern Africa, and the Kenya Union of Journalists (KUJ), has filed a Petition of Appeal at the Supreme Court of Kenya. The petition challenges specific provisions of the Computer Misuse and Cybercrimes Act (CMCA) 2018 regarding state surveillance and digital privacy.

This legal action follows a Court of Appeal ruling that struck down sections related to false publications but upheld several other investigative and penal provisions. The Petitioners seek a determination on whether these remaining sections align with the 2010 Constitution’s protections on privacy and free expression.

The appeal specifically addresses Sections 48 through 53, which govern how the State accesses and monitors digital data. The petition highlights several procedural concerns:

  • Real-Time Interception: Section 53 allows for the interception of content data (such as emails and voice calls) for up to nine months.
  • Search Scope: Section 48 permits law enforcement to search any individual present on a premises during a data-related search warrant execution.
  • Judicial Discretion: Section 50 mandates that courts issue production orders upon application, which the petitioners argue limits the judiciary’s evaluative role.

The coalition is also seeking a final ruling on Section 37 (Wrongful distribution of intimate images), noting that the Court of Appeal did not issue a definitive judgment on its validity. Additionally, the petition argues that Section 27 (Cyber-harassment) and Section 28 (Cybersquatting) require further judicial scrutiny to ensure their broad phrasing does not inadvertently criminalize fair use, parody, or legitimate dissent.

The Petitioners have requested that the Supreme Court either nullify these sections or read-in specific safeguards to ensure constitutional compliance, including:

  1. Enhanced Judicial Oversight: Implementing rigorous, evidence-based standards for the issuance of warrants and production orders.
  2. Notification Requirements: Establishing a mandatory protocol to inform individuals after they have been subject to surveillance, facilitating transparency and legal accountability.

The Supreme Court, via Deputy Registrar Hon. Alice Mukenga, has issued the following directions:

  • April 20, 2026: Service of the Petition to the DPP, Attorney General, Inspector General of Police, and the Speaker of the National Assembly.
  • May 4, 2026: Deadline for the Respondents to file their legal responses.
  • May 11, 2026: A virtual mention at 9 am to establish the roadmap for the final hearing.

About BAKE

The Bloggers Association of Kenya (BAKE) is a community organization for Kenyan bloggers and online content creators. Founded in 2011, BAKE’s primary mission is to promote online content creation and digital rights in Kenya.

About Article19 Eastern Africa

ARTICLE 19 Eastern Africa is a regional organization and a hub of the global ARTICLE 19 network. Named after Article 19 of the Universal Declaration of Human Rights, it is one of the most influential voices in the region for the protection of free speech and the right to information.

About the Kenya Union of Journalists (KUJ)

The Kenya Union of Journalists (KUJ) is the premier professional body and trade union for media practitioners in Kenya. Established in 1962, the union was formed to serve as a collective voice for journalists, seeking to balance the pursuit of media freedom with the welfare of its members.

About the Law Society of Kenya (LSK)

The Law Society of Kenya (LSK) is the country’s premier professional statutory body for advocates. Established by an Act of Parliament (the Law Society of Kenya Act), it currently represents over 20,000 practicing advocates across the Republic.

Media contact

Vallary Lukhanyu – vallary@bake.or.ke

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